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Alaska Community Action on Toxics v. Aurora Energy Servs., LLC

United States Court of Appeals, Ninth Circuit

September 3, 2014

ALASKA COMMUNITY ACTION ON TOXICS; ALASKA CHAPTER OF THE SIERRA CLUB, Plaintiffs-Appellants,
v.
AURORA ENERGY SERVICES, LLC; ALASKA RAILROAD CORPORATION, Defendants-Appellees

Argued and Submitted, Anchorage, Alaska August 13, 2014.

Page 1170

Appeal from the United States District Court for the District of Alaska. D.C. No. 3:09-cv-00255-TMB. Timothy M. Burgess, District Judge, Presiding.

SUMMARY[*]

Clean Water Act

The panel reversed the district court's summary judgment entered in favor of Aurora Energy Services, LLC and Alaska Railroad Corporation in a citizen suit that challenged, pursuant to the Clean Water Act, defendants' non-stormwater discharges of coal into Resurrection Bay, Alaska.

The panel held that the district court erred in concluding that the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity - a general permit under the Environmental Protection Agency's National Pollutant Discharge Elimination System - shielded the defendants from liability under the Clean Water Act for their non-stormwater coal discharges. The panel remanded for further proceedings.

Brian Litmans (argued), Trustees for Alaska, Anchorage, Alaska; Aaron Isherwood and Peter M. Morgan, Sierra Club Environmental Law Program, San Francisco, California for Plaintiffs-Appellants.

John C. Martin (argued), Susan M. Mathiascheck, and Joshua Kaplowitz, Crowell & Moring LLP, Washington, D.C., for Defendant-Appellee Aurora Energy Services, LLC.

Denise Ashbaugh, Jeffrey Marc Feldman, and Ralph Howard Palumbo, Summit Law Group PLLC, Seattle, Washington, for Defendant-Appellee Alaska Railroad Corp.

David S. Gualtieri (argued), Robert G. Dreher, and Aaron P. Avila, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C., for Amicus Curiae United States of America.

John A. Treptow, Senior Assistant Attorney General, State of Alaska Office of the Attorney General, Anchorage, Alaska, for Amicus Curiae State of Alaska.

Jay Christopher Johnson and Kathryn Kusske Floyd, Venable LLP, Washington, D.C., for Amici Curiae Association of American Railroads and National Mining Association.

Karma B. Brown and Karen C. Bennett, Hunton & Williams LLP, Washington, D.C., for Amici Curiae American Farm Bureau Federation, American Forest and Paper Association, American Petroleum Institute, Chamber of Commerce of the United States of America, CropLife America, National Association of Home Builders, Utility Water Act Group.

Ellen Steen and Danielle D. Quist, Washington, D.C., for Amicus Curiae American Farm ...


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